Jessica Beaird v. Arkansas Department of Human Services

Cite as 2019 Ark. App. 415
Digitally signed by Elizabeth
Perry
ARKANSAS COURT OF APPEALS
Date: 2022.07.26 10:41:22 -05'00' DIVISION II
Adobe Acrobat version: No. CV-19-339
2022.001.20169
Opinion Delivered: September 25, 2019
JESSICA BEAIRD
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT, TENTH
DIVISION
ARKANSAS DEPARTMENT OF [NO. 60JV-18-85]
HUMAN SERVICES AND MINOR
CHILD HONORABLE JOYCE WILLIAMS
APPELLEES WARREN, JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED

PHILLIP T. WHITEAKER, Judge

Jessica Beaird appeals a Pulaski County Circuit Court order terminating her parental

rights to her infant son, D.B. 1 Pursuant to Linker-Flores v. Arkansas Department of Human

Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i)

(2018), Beaird’s counsel has filed a motion to be relieved as counsel and a no-merit brief

asserting that there are no issues of arguable merit to support an appeal. The clerk of our

court sent copies of the brief and the motion to withdraw to Beaird informing her of her

right to file pro se points for reversal pursuant to Rule 6-9(i)(3); she has not done so.

Counsel’s brief contains an abstract and addendum of the proceedings below and

states that the only ruling adverse to Beaird was the termination of her parental rights.

Counsel asserts that there was sufficient evidence to support the termination. See Linker-

1
In the initial petition for ex parte emergency custody and dependency-neglect, the
child was identified as TB.
Flores, supra; Ark. Sup. Ct. R. 6-9(i). We agree that there are no issues of arguable merit

on which to base an appeal. We provide the following summary of facts and procedural

history in support of our conclusion.

Beaird gave birth to D.B. in January 2018. At the time of delivery, Beaird tested

positive for amphetamines. D.B.’s urine was negative, but a subsequent meconium test was

positive for illegal substances. Beaird denied drug usage but had outbursts at the hospital

and would not cooperate with hospital staff. The hospital contacted the Arkansas

Department of Human Services (DHS). DHS attempted to set up a team decision-making

meeting with Beaird at the hospital, but she refused to cooperate. The DHS caseworker

also attempted several times to contact the child’s father, Clifton Beaird, 2 but was unable to

do so. DHS then exercised a seventy-two-hour hold on newborn D.B. and initiated a

dependency-neglect proceeding in the circuit court.

At the probable-cause hearing, the court was informed of Beaird’s previous contact

with DHS. Beaird had been involved with DHS on four separate occasions. Two of those

occurrences took place in 2007 and 2015 and involved allegations of newborns testing

positive for illegal substances. Both of those cases resulted in the termination of her parental

rights.

At the adjudication hearing, Beaird stipulated that D.B.’s dependency-neglect was

based on neglect (Garrett’s law) and parental unfitness by the mother, because the juvenile

2
Clifton Beaird consented to the termination of his parental rights; therefore, he is
not a party to this appeal, and the facts as they relate to him have not been included except
to the extent they relate to the termination of the mother’s rights.

2
tested positive for amphetamines and methamphetamine at the time of his birth. The trial

court adjudicated D.B. dependent-neglected on the basis of this stipulation and the results

of the child’s meconium test, which were positive for illegal substances. Of significance,

the court found, on the basis of the mother’s testimony at the hearing, that she was not

being honest with the court and was not credible when she testified about her previous drug

usage. Nevertheless, the court set the goal as reunification and directed DHS to provide

reunification services to Beaird.

Subsequently, the court conducted additional hearings and made findings concerning

Beaird’s compliance with the case plan and court orders. In particular, the court found that

DHS had provided appropriate services but found that Beaird had only partially complied.

Despite the provision of appropriate services, Beaird had tested positive on a drug screen,

had possibly tampered with the results of other drug screens, had not entered or completed

inpatient substance-abuse treatment, and had not submitted to a hair-shaft drug test or other

drug screens when directed by DHS. Additionally, the court noted that Beaird was no longer

employed and had stopped going to counseling for a time. While she had visited with the

juvenile, she exhibited inappropriate behavior during some of the visits. 3 The court found

that she had not demonstrated any progress toward the goals of the case plan and had made

minimal progress toward alleviating or mitigating the causes of the child’s removal.

3
The court heard testimony that Beaird had cursed and threatened DHS staff; that
during some visits she had been aggressive, agitated, and angry; and that she had fallen asleep
during others. She also gave three-month-old D.B. inappropriate food items during a visit.

3
In September 2018, DHS and the attorney ad litem (AAL) filed a joint petition for

termination of parental rights alleging three grounds for termination: (1) subsequent other

factors; (2) aggravated circumstances—little likelihood of successful reunification; and (3)

prior involuntary termination. The court conducted a termination hearing in January 2019.

After the hearing, the trial court entered an order terminating Beaird’s parental rights on

two statutory grounds for termination: subsequent other factors and prior involuntary

termination. 4 The court further found that it was in D.B.’s best interest to terminate Beaird’s

parental rights, noting that D.B. had been in DHS custody for all but two days of his life,

that Beaird had not done the things that would be necessary for her to be a fit parent and

have the child returned to her, and that D.B. is adoptable.

We review termination-of-parental-rights orders de novo but will not reverse the

trial court’s findings of fact unless they are clearly erroneous. Harjo v. Ark. Dep’t of Human

Servs., 2018 Ark. App. 268, 548 S.W.3d 865. A finding is clearly erroneous when, although

there is evidence to support it, the appellate court is left on the entire evidence with the

firm conviction that a mistake has been made. Id. We must defer to the superior position of

the trial court to weigh the credibility of the witnesses. Ewasiuk v. Ark. Dep’t of Human

Servs., 2018 Ark. App. 59, 540 S.W.3d 318. On appellate review, this court gives a high

degree of deference to the trial court, which is in a far superior position to observe the

parties before it. Id. Termination of parental rights is an extreme remedy and in derogation

4
The court erroneously identifies this ground as an “aggravated circumstances”
ground. This ground is a separate ground, however, and does not fall under the purview
of aggravated circumstances under the statute.

4
of the natural rights of parents, but parental rights will not be enforced to the detriment or

destruction of the health and well-being of the child. Id.

Pursuant to Arkansas Code Annotated section 9-27-341(b)(3) (Supp. 2017), an order

forever terminating parental rights shall be based on a finding by clear and convincing

evidence that there are one or more statutory grounds. Counsel states in her no-merit brief

that any argument challenging the statutory grounds for termination would be wholly

frivolous because there was sufficient evidence to support the trial court’s finding of

aggravated circumstances—little likelihood for successful reunification. While that statutory

ground was pled in the petition, the trial court did not make a specific finding on the

aggravated-circumstances ground cited by counsel. Instead, the trial court made findings as

to the two other statutory grounds pled in the petition: subsequent other factors (Ark. Code

Ann. § 9-27-341(b)(3)(B)(vii)(a)) and previous involuntary termination (Ark. Code Ann. §

9-27-341(b)(3)(B)(ix)(a)(4)). We conclude, however, that counsel’s error is not fatal in this

case.

In termination-of-parental-rights cases, we must complete a de novo review of the

record, and a failure of counsel to list and discuss all adverse rulings will not necessarily result

in automatic rebriefing. See Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877; Houseman v.

Ark. Dep’t of Human Servs., 2016 Ark. App. 227, 491 S.W.3d 153 (affirming without

rebriefing). But see Kloss v. Ark. Dep’t of Human Servs., 2019 Ark. App. 121; Bentley v. Ark.

Dep’t of Human Servs., 2018 Ark. App. 125 (rebriefing ordered). Having completed our de

novo review, we conclude that the trial court was not clearly erroneous in its conclusion

that statutory grounds for termination existed. Here, it is undisputed that on two separate

5
occasions, Beaird’s parental rights to two other children were involuntarily terminated.

Thus, the prior-involuntary-termination ground was conclusively satisfied. Because only

one ground of section 9-27-341(b)(3)(B) need be proved to support termination, there can

be no meritorious argument for challenging the trial court’s finding of statutory grounds.

Sims v. Ark. Dep’t of Human Servs., 2015 Ark. App. 137, at 7.

Next, counsel states in her no-merit brief that any argument challenging the trial

court’s “best interest” findings would be wholly frivolous. Pursuant to Arkansas Code

Annotated section 9-27-341(b)(3), an order forever terminating parental rights shall be based

on a finding by clear and convincing evidence that it is in the best interest of the juvenile,

including consideration of the likelihood that the juvenile will be adopted and the potential

harm to the health and safety of the juvenile if returned to the custody of the parent. In its

order, the court specifically found that it had considered adoptability and potential harm to

the child. Thus, the court considered both best-interest factors.

As to the adoptability, Jessica Warren, an adoption specialist, testified there were 294

adoption resources found for D.B. She stated that to her knowledge, there were not any

health, developmental, or other issues that would be a barrier to his adoption. Our appellate

courts have repeatedly held that the testimony of an adoption specialist is sufficient to

support a trial court’s adoptability findings. Whitaker v. Ark. Dep’t of Human Servs., 2018

Ark. App. 61, at 15, 540 S.W.3d 719, 728. Accordingly, Warren’s testimony was sufficient

to support the trial court’s adoptability finding in this case.

As to potential harm, the court found that Beaird was unfit and that it would be a

travesty to return the child to her. We conclude that the trial court was not clearly erroneous

6
in its conclusion concerning potential harm. Beaird has a serious and ongoing drug addiction

that has resulted in the termination of her parental rights to not only this child but also to

two other children. A parent’s past behavior is often a good indicator of future behavior.

Schaible v. Ark. Dep’t of Human Servs., 2014 Ark. App. 541, 444 S.W.3d 366. Despite this,

Beaird continued to deny her drug problem, and she failed to complete drug treatment

despite treatment referrals on numerous occasions. We have held that continued drug use

demonstrates potential harm sufficient to support a best-interest finding in a termination-

of-parental-rights case. Middleton v. Ark. Dep’t of Human Servs., 2019 Ark. App. 97, at 11,

572 S.W.3d 410, 417. Additionally, Beaird admitted that she has a history of mental illness:

PTSD, manic depression, and anorexia; but she failed to complete individual counseling. At

the time of the termination hearing, Beaird was incarcerated on a parole hold. She admitted

that this hold was due to new charges but contended that the new charges had been dropped.
5
The facts supporting potential harm, in conjunction with the evidence of adoptability,

provided sufficient evidence for the trial court’s best-interest finding.

Affirmed; motion to withdraw granted.

ABRAMSON and GLADWIN, JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

One brief only.

5
The new, allegedly dismissed charges were for criminal mischief and third-degree
domestic battering of her mother. The original charge was for possession of
methamphetamine.

7